Should Tweens Be Prosecuted As Adults?

This is TELL ME MORE from NPR News. I'm Michel Martin. We'd like to start the program today with a subject that we know will be challenging for many people. We want to talk about what is the right and fair way to treat the youngest violent offenders. We'd actually planned this conversation before the latest tragedy, the shooting just last night at a Washington state college campus, that killed one and wounded three others. There was also the recent killing spree in Santa Barbara and a multiple stabbing at a Pennsylvania high school. But those crimes involved subjects who were teenagers and young adults.

But a very disturbing assault this week in Wisconsin was allegedly carried out by middle-school students. Authorities say two 12-year-old girls allegedly lured a friend into the woods and stabbed her 19 times. The victim, also a 12-year-old girl, survived the attack, and she is recovering. The two suspects are now set to be tried in adult court. And this comes at a time when emerging science suggests that emotional maturity doesn't come until well after the teen years, some even argue into the early 20s. So we wanted to ask whether prosecuting children as adults makes sense and if so, in what circumstances.

We wanted to talk more about this, so we've called Professor Barry Feld. He is a professor at the University of Minnesota Law School. He specializes in juvenile justice and the law. He also has a doctorate in sociology, as well as his law degree. And he's with us from Effie, Minnesota. Professor, thanks so much for joining us.

BARRY FELD: Thank you for having me.

MARTIN: I do want to note that some other media outlets are using the girls' names, but we are not. And that is in accordance with NPR policy about minors. So, Professor, that being said, is there some general standard for when juveniles are charged as adults across the states?

FELD: Every state has its own juvenile code, and every juvenile code differs in terms of the types of children who will be transferred to criminal court and the process by which they would be transferred to criminal court.

MARTIN: So it varies widely?

FELD: It varies very widely. In most states, a judge would hold a hearing to determine whether or not a juvenile should be tried in juvenile court or in criminal court. And the criteria that judges use vary considerably.

In a number of states, the prosecutor has discretion whether or not to charge a case directly in juvenile court or in criminal court. And in other states, the legislature has simply carved out of juvenile court jurisdiction, certain categories of age and offense, which is what makes the Wisconsin case interesting because in Wisconsin, any child 10 years old or older must be charged in criminal court - tried in criminal court, if they're charged with murder or attempted murder.

MARTIN: Ten years old or older must be tried in adult courts. So there was no discretion in this case?

FELD: That's right. That's right. The legislature has exercised its discretion to say that all you need to do is tell me that a kid is 10 or older and charged with murder, and they're an adult.

MARTIN: So for people who are not, you know, familiar with this -because many people are not because the juvenile system is closed as you mentioned in many places - what would be the difference?

Can you just talk a little bit about how the juvenile processes or trial processes differ for juveniles, than adult court? Do they get special consideration - how they're treated, what kind of witnesses, what kind of processes as they unfold? What's different about it?

FELD: Sure. I mean, the main difference is that, well, juvenile courts by definition are created for children in recognition of the fact that children are different. And because children are different, juvenile courts are more oriented toward treating and rehabilitating and trying to change the life trajectory of young offenders.

So they have more resources. They will have more clinical support, and at the end of the juvenile court's jurisdiction, a juvenile would be released. And the age of jurisdiction varies from states, and in some states it would be 18, in others 19 or 21 and in Wisconsin, 25.

By contrast, if a person is tried as an adult, they can be executed - not juveniles - but could receive very, very long sentences, whereas the length of sentence in a juvenile court would be substantially shorter, especially for the more serious crimes.

MARTIN: Can juveniles be executed in this country...

FELD: No...

MARTIN: ...Even if they commit a capital crime. What would be a capital crime for an adult which is an intentional act?

FELD: The Supreme Court has had three very important decisions. In 2005, in Roper v. Simmons, it abolished the death penalty for crimes committed by offenders under 18. In 2010, in Graham v. Florida, it abolished life without parole for non-homicide offenders. And in 2012, in Miller v. Alabama, it said that you cannot impose a mandatory life without parole on a juvenile who commits murder.

MARTIN: If you're just joining us, we're talking about charging juveniles as adults. As you might imagine, we are motivated to talk about this because of the case of the two 12-year-old girls in Wisconsin who allegedly lured a friend into the woods and stabbed her multiple times. She survived and is recovering, and the two suspects are now set to be tried in adult court. In accordance with NPR policy, we are not naming those girls.

I'd like to talk - to go sort of beyond this, to talk about the adolescent brain more generally. Earlier this year, we spoke with Dr. Daniel Siegel, and he's the author of the book "Brainstorm," where he talks about, you know, the power and the purpose of the teenage brain. And he talks about how people generally kind of associate adolescents with hormonal changes. But the biggest changes, he says, are in the brain. And I just want to play that - a short clip from that conversation.

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DANIEL SIEGEL: The way the brain is changing really is urging them to try new things, to have an emotional spark that pushes them forward - a social engagement with their peers, a search for novelty, where they are going to be taking risks, which unfortunately involves danger.

MARTIN: Now, needless to say, Dr. Siegel does not know these girls. He did not treat them. He has not examined them and so forth. But I wanted to ask you, these two girls allegedly plotted this together. This was very much a planned act. And I'm just wondering how this fits into your understanding of how the - violence involving juveniles. Is that a common factor, and what might be motivating it?

FELD: Well, the adolescent brain is a work in progress and especially for these very young offenders. They're really very, very different in terms of their risk assessment, appreciation of consequences, short-term versus long-term time perspective. It's a developmental process that the neuroscientists tell us now are not really completed until sometime in the early 20s.

So especially for these very young kids, you know, they probably don't have what we would think of as mature judgment or impulse control. And the Supreme Court decisions I referred to earlier also emphasized the lack of self-control, the impulsivity, the vulnerability to peer influences, you know. Significantly, all the cases I described and this one involved multiple juveniles. So they almost goad each other on in ways that, if they have been acting alone, the crime would never have occurred.

MARTIN: Now, these girls reportedly acted to please a fictional Internet creature known as Slenderman, this according to interviews done with family members. You know, if this were an adult, one would say that there was mental competency issues involved. But with kids, as we know, they have sometimes a very different relationship with reality, you know, than adults do - that fictional characters can be quite real to them. And I wonder, how should the law recognize this? How does the law recognize that? Or does it? Does it?

FELD: Yeah, the first way the law recognizes it is by creating juvenile courts, as an alternative to criminal courts exactly because of differences in both cognitive understanding of reality, as well as matters of self-control, that the juvenile court is an institution that recognizes the inherent immaturity of adolescents as a class.

And so one of the provisions in the Wisconsin law is even if these girls are tried and convicted as adults, the criminal court would have the option of sending - of imposing a juvenile sentence and sending them back to juvenile court for more appropriate treatment than they would receive in the adult system.

MARTIN: Finally, I should have asked you this at the outset. Do you have a personal opinion about either this case - recognizing that you have not been personally involved with it - but do you have a personal opinion about how this case is proceeding or more generally how adults - how children should be treated, even if they are accused of committing really heinous and egregious acts?

FELD: Sure, well, it helps to put this case in context. That murder or negligent homicide by juveniles accounts for about one tenth of 1 percent of all of the homicide arrests. And in the 2012 - in the FBI Uniform Crime Report, there were zero females 12 or under arrested for homicide. So, you know, this is a very, very atypical kind of case.

But there's nothing, from what I've read in the newspaper articles about the case, to suggest that the juvenile court is not the appropriate place to deal with these kinds of kids. Normally, when we transfer kids to criminal court, they're going to be older, 16 or 17-year-olds. They will have typically had some prior record of delinquency involvement. They would have had some kind of treatment exposure so that the system is sort of washing its hands of them. You know, by contrast, when you're dealing with such very young kids, there's absolutely no reason to think that anything good would happened with them in the adult system, and ample reason to think that the juvenile court can deal with whatever it is that brought them to the woods that day.

MARTIN: Professor Barry Feld is Centennial Professor of Law at the University of Minnesota Law School. As we mentioned, he also has a doctorate in sociology and is a recognized authority in the area of juvenile justice and the law. We reached him in Effie, Minnesota. Professor Feld, thanks for speaking with us.